The Sports Lawyer: ‘It is not illegal for a publican to subscribe to a foreign broadcaster. The issue in the Portsmouth case is whether it’s legal to screen it in public’

THE SPORTS LAWYER is actually a posse of Britain’s brightest lawyers, from the Sport & Media team at the UK law firm, Thomas Eggar, who will be contributing features, analysis and insight on a regular basis on the key sports law issues of the day. In TSL’s latest column, Andrew Nixon considers the implications of a pub landlady’s right (or not) to show Premier League football from a foreign feed, and how the case could change the broadcasting landscape

By Andrew Nixon

9 February 2011

A final ruling by the European Court of Justice (ECJ) on the case brought by Portsmouth pub owner Karen Murphy over the streaming of Premier League matches via foreign broadcasters is expected later this year. However, the ECJ Advocate General last week provided her unbinding opinion that the prohibition on live streaming via a Greek Satellite broadcaster breached European Union Law. It is an opinion that could pave the way for significant changes to the way broadcasting rights are structured and sold.

Ms.Murphy was originally convicted of receiving fraudulent transmissions of Premier League matches at Portsmouth Magistrates Court in January 2007. Her appeals to both the Portsmouth Crown Court and the High Court in London failed. The issue revolved around the application of Section 297 (1) of the Copyright, Design and Patents Act 1988. Essentially, it is not illegal for a publican to subscribe to a foreign broadcaster; however, the right to stream live football in the UK depends on the ownership, assignment and distribution of copyright to those games. Ms Murphy was therefore convicted for breach of copyright laws, although leave to appeal to the ECJ was granted.

Broadcasting rights for sporting events generate huge commercial revenue for a vast array of stakeholders; from the broadcasters themselves, through to sponsors, rights holders (such as the Premier League), the clubs, and, ultimately, the players. The Advocate General opined that allowing broadcasting rights holders, such as BSkyB and ESPN (and previously Setanta) to agree territorially based licensing deals went against the whole ethos of European Law and that the Premier League was “profiting from the elimination of the internal market”. The key EC Directives upon which the Advocate General relied were the core free trade provisions (Articles 28-30) and the common market principles of free movement of goods and services.

How broadcasting rights tend to work, from a legal aspect, is that a rights holder will enter into a broadcasting agreement with the host broadcaster. The host broadcaster will then assign the copyright to back to the rights holder who is then free to license the content to whoever it chooses, and for a fee. Crucially, the rights holder is entitled to do this on a country by country basis, and it is this right that is potentially under threat.

If the right to territorially licence broadcasting content is revoked, then the whole structure of broadcasting rights will come under review, and exclusivity agreements are likely to become a thing of the past, to be replaced by global and pan-European broadcasting deals. However, this may ultimately serve to strengthen BSkyB’s position in the market. Whilst it is possible that the broadcaster may see some subscribers seek alternative means of viewing Premier League football, the practical reality is that language barriers will prevent a mass exodus (at least on an individual subscriber level). Further, should pan-European rights deals become a reality then BSkyB would be well placed to expand its own offering across Europe.

ECJ endorsement of the Advocate General’s opinion is not a dead certainty. Arguably, the creation of ‘rights without boundaries’ is a legislative issue, and not one that the ECJ, through a ruling, can effectively force upon broadcasting companies and event organisers. However, there is little doubt that the preliminary opinion, if upheld, will create a whole host of new issues for lawyers on both sides to tackle when next the Premier League and its host broadcasters sit down around the deal making table.

Andrew Nixon is an Associate in the Sport and Media Group at Thomas Eggar.